Augustino Lameck @ Augustino vs Republic (Criminal Appeal No. 6 of 2022) [2024] TZCA 834 (28 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA rCORAM: LILA, J.A.. FIKIRINI, J.A., And KENTE, J.A.^ CRIMINAL APPEAL NO. 06 OF 2022 AUGUSTINO LAMECK @ AUGUSTINO ........................................ APPELLANT VERSUS THE REPUBLIC ..... ........... ................................................... RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Tabora at Tabora) fNsana. SRM-Ext. Jur.^ dated the 26th day of August, 2021 in Criminal Appeal No. 21 of 2021 JUDGMENT OF THE COURT 21s t & 28thAugust, 2024 LILA, J.A.: The appellant, Augustino Lameck @ Augustino, is before the Court protesting against convictions and sentences meted against him upon being found guilty of two counts. In the first count he was charged with rape contrary to sections 130(1), (2) (e) and 131(1) of the Penal Code. The second count was impregnating a school girl contrary to section 60A(3) of the Education Act, Cap. 353 of the Laws as amended by the Written Laws (Miscellaneous Amendment) Act No. 2 of 2016. He was sentenced to serve thirty (30) years imprisonment for the first count and one year (1) for the second count. It was, i

however, ordered that, in serving the one-year sentence, three months for which the appellant had been in prison be deducted. The allegations levelled against the appellant in the particulars of the two offences are that; the appellant had carnal knowledge of one Shija Mkuchi, aged sixteen years and a Standard Five pupil at Uchama Primary School between December, 2019 to May, 2020 at Mwisuni area in Uchama Ward within Nzega District in Tabora Region. The offence of impregnating a girl was alleged to have been committed in February, 2020 at the same place. We shall refer to the girl as the victim to disguise her identity. The convictions and sentences aggrieved him and appealed to the High Court. The appeal landed on the hands of S. B. Nsana, Senior Resident Magistrate Extended Jurisdiction (SRM Ext. Jur) who heard and determined it. That was consequent upon a transfer of the appeal from the High Court to the Resident Magistrates' Court to be heard by a resident magistrate with extended jurisdiction. The relevant transfer order found at page 81"A" of the record of appeal is couched thus: - "COURT: This Criminal Appeal No. 10 o f 2021 is hereby transferred to the RM's Court Tabora Extended Jurisdiction and is assigned to Hon. SERAPHINE

BENARD NSANA, SRM with Extended Jurisdiction pursuant to section 173(1) o f the CRIMINAL PROCEDURE ACT, CAP. 202 R. E. 2019 and THE CRIMINAL PROCEDURE (EXTENSION OF JURISDICTION) ORDER, G.N. NO 219 O F2018 . " As is discernable from the record of appeal, the assigned resident magistrate took up the appeal and determined it in disfavour of the appellant, hence the instant appeal. There are three points of grievances advanced by the appellant, but delving unto them to dispose the appeal appeared to be unnecessary by Mr. Steven J. Mnzava, learned State Attorney who was assisted by Mr. Merito B. Ukongoji, also learned State Attorney. He sought and was granted leave to bring to the Court's attention a legal infraction glaring in the record of appeal ahead of hearing the grounds of complaints advanced by the appellant. The point was that, quoting Mr. Mnzava: - "The transfer order found at 81 "A "is invalid and could not have effectively transferred Criminal Appeal No. 10 o f2021 o f the High Court to the Resident Magistrates' Court so as to be heard by a resident magistrate with extendedjurisdiction as it purports to have done . " 3

Apparently, it being a legal issue, there was no observation made by the appellant who left it for the Court to consider the significance of the prayer made. At the hearing of the appeal, the appellant had no advantage of being represented and alive of that fact, he only relied on his grounds of appeal which he urged they be considered by the Court and ultimately he be set at liberty. He was keen to hear the respondent Republic's response to his appeal first. Mr. Mnzava had very little to tell the Court. Straight to the point, he argued that the transfer order was made under a wrong provision of the law, that is section 173(1) of the Criminal Procedure Act (the CPA) which refers to the Minister's powers to invest a resident magistrate with extended jurisdiction after consultation with the Chief Justice (the G) and the Attorney General (the AG). In his understanding of the law, the relevant provision to be invoked is section 45(2) of the Magistrates' Court Act (the MCA). He considered the infraction serious and urged the Court to exercise the revisional powers bestowed to it under section 4(2) of the Appellate Jurisdiction Act (the AJA) and declare a nullity all that which transpired before the resident magistrate with extended jurisdiction for want of jurisdiction and, thereafter, the High 4

Court to be tasked to hear the appeal after remitting back the record of appeal by the appellant. Even after hearing Mr. Mnzava, the appellant had no substantial contribution apart from expressing his discomfort with the matter being send back to the High Court for hearing instead of him being set free. We have considered Mr. Mnzava's arguments and perused the record of appeal. It is vivid that the transfer order was made under section 173(1) of the CPA. This section provides; - " 173.-(1) The minister may after consultation with the Chief Justice and the attorney General, by order published in the Gazette- (a) Invest a resident magistrate with power to try any category o f offences which, but for the provisions o f this section, would ordinarily be tried by the High Court and may specify the area within which he may exercise such extended powers." By this section, no transfer can validly be made as it only vests the Minister responsible with legal affairs to invest a resident magistrate with extended jurisdiction, which power he exercises in consultation with the CJ and the AG. Actually this is done before a case is transferred to a resident 5

magistrate. It is intended to cloth a resident magistrate with jurisdiction to preside over matters ordinarily presided by judges of the High Court. Once this is done, then the High Court, in respect of appeals lodged in the High Court, acting under the authority of section 45(2) of the MCA, may transfer appeals for hearing by such a magistrate. Section 45(2) of the MCA provides: - "45.-(1) The minister may, after consultation with the Chief Justice and with the Attorney General, by order published in the Gazette- (a) Invest any resident magistrate, in relation to any category o f cases specified in the order, with the appellate jurisdiction ordinarily exercisable by the High Court... (2) The High Court may direct that an appeal instituted in the High Court be transferred to and be heard by a resident magistrate upon whom extendedjurisdiction has been conferred by section 45(1)." The Court had an occasion to consider the tenure and import of this provision in the case of Zakaria Magoma vs Republic, Criminal Appeal No. 113 of 2006 cited in the case of Abrahaman Ramadhani @ Chino vs Republic Criminal Appeal No. 130 of 2013 (both unreported) in which the Court held that: - 6

"Our reading and understanding o f the above section (after it was reproduced in the judgment) is that the transfer o f appeals from the High Court to the lower courts is done to specific magistrate and not to the court." In the appeal under our consideration, by invoking the provisions of section 173(1) of the CPA as the authority for making a transfer of Criminal Appeal No. 10 of 2021, the learned judge strayed into error. We hasten to hold that there was no valid transfer of the appeal from the High Court to the Resident Magistrates' Court. Even though the transfer order assigned the appeal to Seraphine Benard Nsana SRM Ext. Jur, but she was not properly seized with the record of appeal in Criminal Appeal No. 10 of 2021. In view of this anomaly which touches on the jurisdiction of the resident magistrate who presided over the appeal, we respectively agree with Mr. Mnzava that the ailment is fatal rendering the presiding magistrate to have no jurisdiction to preside over the appeal. The proceedings, judgment and the consequential orders made dismissing the appellant's appeal are null and void. In the circumstances, the High Court has either to hear the appeal or properly transfer it to a resident magistrate with extended jurisdiction.

In fine, we allow the appeal and we order the record of appeal of the High Court in Criminal Appeal No. 10 of 2021 to be remitted back to the High Court for compliance with the law. We also direct the appeal hearing to be expeditiously conducted. Meanwhile, the appellant has to remain in prison custody. DATED at TABORA this 23r d day of August, 2024 S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 28th day of August, 2024 in presence of the appellant in person unrepresented - linked via video conference from High Court Tabora and in the absence of the Respondent/Republic is hereby certified as a true copy of the original. 8